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UK IPO publishes patent case data required for the UPC

The UK IPO published yesterday (here) information on the number of IP cases commenced in the High Court in 2015 and 2016. The report’s analysis of the patent cases (here) is relevant to the UK’s participation in the Unified Patent Court (UPC), in particular to its financial contribution during the first seven year transitional period.

Under Article 37(3) of the UPC Agreement, the contribution of each country that has ratified the Agreement when it comes into force depends on the number of European patents (EPs) having effect in that country on that date and also on the number of EPs for which infringement or revocation actions have been brought before the national courts in the previous three years. (If a country ratifies during the seven year period, the relevant date is the date of ratification.) The UK has, of course, already ratified, and the IPO’s report shows that the number of EPs for which infringement or revocation actions were brought in the UK courts in 2015 and 2016 were 85 and 58 respectively (table 10). (We understand that each country’s percentage contribution will be half its percentage of all the countries’ EP infringement or revocation actions plus half its percentage of EPs, i.e. equal weight is given to the numbers of EP cases litigated and EPs valid in each country.)

The report also includes information relevant to the UK’s local division of the UPC. Under Article 8 of the UPC Agreement, if in three successive years 50 or more patent cases on average have been commenced in a country then two of the three legally qualified judges in a panel will be local - if fewer cases then only one will be local. Tables 15 and 16 show annual data from 2007 to 2016, and clearly the UK meets the requirement for two local judges.

The new study supercedes an earlier study conducted by the Intellectual Property Lawyers Association following the UK’s signature of the UPC Agreement. By commissioning of a follow-up study the UK’s ongoing commitment to the UPC project is re-affirmed – as is also made clear in the IPO’s revised Brexit Guidance re-published on 1 March here: stating that “The UK intends to stay in the Unified Patent Court and unitary patent system after we leave the EU”.

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